Sen. Mel Martinez looked shocked. During Tuesday's Senate Armed Services Committee hearing, Martinez asked Pentagon General Counsel Jeh Johnson if terrorism detainees who had been acquitted would be released. Johnson replied that the administration would seek to continue detaining some suspects post-acquittal under the laws of war.
"If, for some reason, he's not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think it's our view that we would have the ability to detain that person," said Johnson.
Martinez asked, "So prosecution is moot?"
"No, no, not in my judgment," Johnson replied, but his initial statement suggested that in some circumstances, it would be. Why bother bringing charges in the first place, if you have the power to detain someone whether or not they are found guilty?
In a statement, the ACLU's Jameel Jaffer said, "continuing to detain a person indefinitely without charge or trial for a crime for which he has been acquitted is absurd and unconstitutional."
However, some legal experts on both the left and right say that post-acquittal detentions of certain detainees -- such as those captured in a theater of active combat, may be legal. Moreover, the military authority under which a suspected terrorist could be detained post-acquittal also allows for an individual to be detained after their allotted sentence is served, provided the government still identifies them as a member of a group that has declared war against the United States.
"As a legal matter, it is a non-outrageous statement," says Ben Wittes, a self-identified centrist and legal expert with the Brookings Institution who has proposed a legal framework for preventive detention of suspected terrorists. "It is a very difficult political position to sustain however." Ken Gude, a human rights and national security expert at the Center for American Progress, agrees. "Technically the government can continue to detain an individual after they've been acquitted in a military court, as a matter of law," says Gude. "As a matter of policy, it's a terrible decision."
That the administration is even considering post-acquittal detentions of terrorist suspects underscores the difficulties it faces in dealing with the remaining 227 Guantanamo detainees. The administration has said it will attempt to prosecute as many detainees as it can in federal court, but it has to be careful about choosing which detainees to try, because it risks being obligated to free detainees it still considers dangerous if they are acquitted, hence Johnson's statement.
However, the prospect that detainees could be held even after being acquitted or even serving out their sentences, further damages the credibility of the administration's pledge to respect the rule of law in the fight against terrorism. The political consequences of detaining suspects post-acquittal may also partially explain why the administration is considering a legal process for detaining some suspects indefinitely -- so they can avoid bringing to trial cases they either might lose or be unable to secure lengthy sentences for. Eugene Fidell, a military law expert who teaches at Yale, argues, "some of these people are going to have to be [released] even though we don't like it, and even though they may be dangerous."
"It's very disappointing to see Obama administration officials so blind to the political reality of what it is they're considering," says Gude. At the legal blog Balkinization, Deborah Pearlstein, who testified on Wednesday before the House Sub-Committee on the Constitution over the issue of military commissions, wrote, "[T]he past eight years worth of behavior has left both the legitimacy of the detention authority, and the legitimacy of the trial authority, in substantial question. It is hard to imagine that combining the two will bolster the credibility of either."
During the Senate hearing, Johnson and Assistant Attorney General David Kris also said they hadn't yet developed clear criteria for determining which detainees would be more appropriately tried in military commissions and which would be tried in federal courts. They repeated Obama's pledge that the administration would try terror suspects in criminal courts "where feasible" but did not give a clear explanation about when criminal prosecutions would be feasible and when they wouldn't be.
"If 'feasibility' means easier versus harder, that's a different matter," says Fidell. "If what they're saying is it's harder to get a criminal conviction in federal district court than in a military commission, that is not the right way to approach it."
Wittes warns that keeping detainees post-acquittal would undermine confidence in the rule of law. "I think people have this very deep-seated belief, and rightly so, if you're acquitted then you go free. And you don't want to undermine people's trust in that proposition."
Wittes adds that post-acquittal detentions would be difficult because the government would be, in many cases, detaining someone based on the same evidence that was rejected ruing prosecution.
Gude and Wittes also suggest that while post-acquittal or even post-conviction detentions might be legal, the administration would be taking a huge risk in pursuing them as a matter of policy. They point out that even the Bush administration declined to assert such authority in cases where it might have been legally possible. Salim Hamdan, who acted as Osama bin Laden's limo driver and bodyguard, was tried by military commission in 2008. Hamdan, as a member of al Qaeda, could technically have been held beyond the five year and five month sentence he was given when he was convicted of providing material support for terrorism. Last August, immediately after Hamdan's conviction by military commission, the Bush administration hinted that it might continue holding Hamdan as an enemy combatant beyond his assigned sentence, but declined to do so, largely because of the potential political consequences. If the Obama administration did continue to detain suspects after acquittal or beyond their assigned sentence, they would be going beyond what the Bush administration had previously done.
"He was given a very short sentence, and he was released at the end of that sentence, even thought he could have been detained as a military detainee beyond that time," Gude points out.
"Once somebody gets acquitted or serves their sentence, it's politically difficult to continue to hold them, I don't think you should do it," Wittes says. "I think that undermines people's concept of what a criminal trial really is."
"You shouldn't build a policy around that," he adds.
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